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TMI Blog2021 (1) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... issued on 28.05.2007 and the accused gave the reply denying any liability and hence the complainant was forced to file the complaint. The accused was secured before the Trial Court and he did not plead guilty and claimed the trial and hence the complainant examined himself as P.W.1 and got marked the documents at Exs.P.1 to 20. The accused was subjected to 313 statement. The accused examined himself as D.W.1 and examined two witnesses as D.W.2 and D.W.3 and got marked the documents at Exs.D.1 to 5. The Trial Judge after considering both oral and documentary evidence placed on record, convicted the accused for the offence punishable under Section 138 of the Negotiable Instruments Act ('N.I. Act' for short) and sentenced him to pay a fine of Rs. 2,85,000/- and out of the fine amount, Rs. 2,83,000/- was payable to the complainant and remaining amount of Rs. 2,000/- be vest with the Government as penalty. In default of payment of fine, the accused was directed to undergo simple imprisonment for a period of one year. 4. Being aggrieved by the judgment of conviction, the accused preferred Crl.A.26/2011 and in the appeal, findings of the Trial Court was reversed and the accused w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ately after the receipt of the notice, reply was given setting forth the said defence. The accused also filed the complaint against the complainant and also Raghupathi Bhat for misusing of the said cheque. It is also elicited in the cross- examination of P.W.1 with regard to the interpolation by the complainant in respect of other transactions and also admitted that with regard to the interpolation of the cheque, the matter was settled and he paid the amount in favour of one Arun Kumar Hegde. 8. The accused by leading the defence evidence examined himself as D.W.1 and by examining two witnesses has rebutted the case of the complainant. The learned counsel in support of her contentions, relied upon the judgment of the Apex Court in the case of BASALINGAPPA v. MUDIBASAPPA reported in (2019) 5 SCC 418. Referring this judgment, the learned counsel would contend that the Apex Court had come to the conclusion that the complainant was not having financial capacity to lend the amount and the learned counsel would submit that in the case on hand also though the complainant claims that he has withdrawn the amount from the account of his wife and paid to the accused, nothing is forthcoming t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12. P.W.1 in the cross-examination says that he was not having any loan while running the hotel. It is elicited that he has incurred loss in the hotel business and hence he sold the hotel and cleared the loan and then joined the Nursing College as driver. It is elicited that he lent the money in favour of the accused in the month of December 2006. He had drawn money from his wife's account and gave the same to the accused. It is also his evidence that in November 2006 and December 2006, the amount was drawn from his wife account. It is also elicited that he was not having sufficient amount in his account at the time of lending the money to the accused. He says that he kept the amount in his wife account. He also says that he sold the hotel in the year 2003 and kept the amount in his wife account as fixed deposit for a period of three years and the same was withdrawn in the year 2006, since the accused had approached him for loan. It is his evidence that in November 2006 he gave an amount of Rs. 1,00,000/- and in the month of December 2006, he gave an amount of Rs. 1,80,000/- and he did not obtain any documents from the accused. But while availing the loan for the second time, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hi Bhat and giving the cheque as security, he is not having any documents. He also admits that he gave the complaint against the complainant and Raghupathi Bhat and the same is pending. He also admits that the police have filed the 'B' report in the said case. He admits the signature available on Ex.P.1 and he cannot examine Raghupathi Bhat since he is not having cordiality with him. He admits that for having given the cheque Ex.P.1 to Raghupathi Bhat, he is not having any document. It is suggested that the complainant out of the savings amount of his business and also sale proceeds of his tempo, lent loan to him and the same was denied. It is suggested that the complainant drawn the money from his account and account of his wife and lent the money to him and the same was denied. It is elicited that he availed the loan of Rs. 50,000/- from Raghupathi Bhat in order to maintain his vehicle and he repaid the said amount to Raghupathi Bhat and he is not having any document to show that he had availed the loan from Raghupathi Bhat. He also admits that he has received the 'B' report copy. 16. In the further cross-examination of D.W.1, he admits that in the private compla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mits that he cannot tell for what purpose the accused availed the loan of Rs. 50,000/- from Raghupathi Bhat. The other admission is that the accused gave the signed blank cheque to Raghupathi Bhat. In order to defeat the claim of the evidence of D.W.2, except eliciting the purpose of availing the loan is not known to him, nothing is elicited. 21. Now this Court has to examine the evidence of P.W.1 and D.W.1. It has to be noted that it is the case of the complainant that he lent an amount of Rs. 2,80,000/- to the accused. On perusal of the complaint, nowhere he has stated that on what date he has lent the amount. Only in the cross- examination, P.W.1 claims that he lent the amount in the month of December and subsequently he has improved his evidence that he gave the amount of Rs. 1,00,000/- in the month of November and remaining amount of Rs. 1,80,000/- in the month of December. In order to substantiate this, there is no pleading in the complaint whether he gave the amount in two installments that too in the month of November and December and in the complaint it is stated that in discharge of the liability, the accused issued the cheque dated 02.05.2007. It is also important to no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inent to note that P.W.1 claims that he sold the hotel in 2003 and kept the money in fixed deposit and in order to substantiate the same that out of the sale proceeds of the hotel, he kept the amount in fixed deposit, no documents is produced. It is also important to note that though he claims that he was not having loan while running the hotel, in further cross- examination, he categorically admits that he was having the loan, hence he sold the hotel and cleared the loans. It is important to note that in the cross-examination of D.W.1, it is suggested that out of his savings of his business and selling of the vehicle, he gave the money to the accused. The complainant is not sure whether he had paid the amount out of the hotel sale proceeds or his business savings and selling of the vehicle. The evidence of P.W.1 is that out of the sale proceeds of the hotel, he paid the amount. In the cross-examination of P.W.1 the above said suggestion was made and not sure out of which amount, he paid amount to the accused. It is important to note that in the cross-examination P.W.1 categorically admits that there are no documents for having lent Rs. 2,80,000/- to the accused. I have already poi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etting up the defence immediately after the receipt of notice and gave the reply in terms of Ex.P.8 that the cheque given to Raghupathi Bhat on 26.03.2007 was misused by the complainant. No doubt, though the complaint filed by the accused was registered, after the investigation 'B' report was filed. The Court has to take note of the material on record. The very contention that the Appellate Court ought to have drawn the presumption in favour of the accused, cannot be accepted. Mere signature found in Ex.P.1 is not a ground to draw the presumption. Instead the accused has made out the case leading probable defence rebutting the evidence of the complainant. Having perused the judgment of the Appellate Court, I do not find any error committed by the Appellate Court in re-appreciating the evidence available on record. However, committed an error in coming to the conclusion that the complainant is insolvent and the Appellate Court ought not to have made such an observation. But the documentary proof discloses that the complainant was not having sufficient amount in his account and also in his wife's account to lend the money during the particular period. However, it does not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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